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Smith v. Fantone

United States District Court, E.D. California

April 14, 2017

TRAYVONE SMITH, Plaintiff,
v.
EMMANUEL J. FANTONE and JASWANT KHOKHAR, Defendants.

         ORDER FINDING COGNIZABLE CLAIMS FOR DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS AGAINST DEFENDANTS FANTONE AND KHOKHAR AND FOR VIOLATION OF DUE PROCESS AGAINST DEFENDANT KHOKHAR, AND DISMISSING ALL OTHER CLAIMS (ECF NO. 12) ORDER FINDING SERVICE OF SECOND AMENDED COMPLAINT APPROPRIATE, AND FORWARDING SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN

         Trayvone Smith (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on August 10, 2016. (ECF No. 1). The Court screened the complaint and dismissed it with leave to amend on December 19, 2016. (ECF No. 9). Plaintiff filed his first amended complaint on January 23, 2017. (ECF No. 10). The Court screened Plaintiff's first amended complaint and provided Plaintiff with leave to amend on March 15, 2017. (ECF No. 11). Plaintiff filed his second amended complaint on April 7, 2017 (ECF No. 12), which is before this Court for screening.

         On August 22, 2016, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF No. 6), and no other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

         The Court will allow Plaintiff's claim for deliberate indifference to serious medical needs against defendants Fantone and Khokhar and Plaintiff's claim for violation of Due Process against defendant Khokhar to proceed past the pleading stage. The Court finds the second amended complaint appropriate for service of process.

         I. SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

         A complaint is required to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. at 679. While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff's legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.

         Pleadings of pro se plaintiffs “must be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

         II. SUMMARY OF PLAINTIFF'S SECOND AMENDED COMPLAINT

         Except as discussed below, Plaintiff's allegations in his second amended complaint are materially the same as in Plaintiff's first amended complaint, and the Court refers to its summary and analysis of Plaintiff's first amended complaint (ECF No. 11) regarding those allegations.

         Plaintiff's second amended complaint adds significant allegations regarding Defendant Jaswant Khokhar. Plaintiff alleges that he was interviewed by Dr. Khokhar on July 28, 2014. Dr. Khokhar represcribed Plaintiff Remeron and informed Plaintiff about Trileptal. Plaintiff consented to taking Trileptal. Dr. Khokhar then forged Plaintiff's signature on a consent form for Risperdal. Plaintiff was not informed of Risperdal or its side effects.

         It is also worth noting that Plaintiff's second amended complaint did not add allegations regarding compliance with California Government Claims Act, which the Court discussed in its prior screening order. (ECF No. 11, pgs. 6-7).

         III. ANALYSIS OF PLAINTIFF'S CLAIMS IN SECOND AMENDED COMPLAINT

         A. ...


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